FOSS Trademarks are Probably OK

The protection that projects have from trademarks can often seem to be a weapon used to remove the freedom of hackers to change the source code and redistribute.

Examples include the Firefox trademark agreement, where Mozilla will not allow a re-distributor to call their package ‘Firefox’ unless all code has first gone upstream. This policy is used to make sure everybody get’s Mozilla’s Firefox and not someone else’s Firefox that they couldn’t control the quality for.

Then there is the example of Oracle’s “OpenOffice.org” trademark which, isn’t allowed to be used by anything other than the code from Oracle. And since the split of the Open Document Foundation has forced the creation of a new brand ‘LibreOffice’ so that the open source code can continue to be developed in the open.

The third example is the corporate control of brands. Canonical the company owns and controls the Ubuntu brand, whilst building a large community of volunteers to build that brand on their behalf. There are agreements in place which allow the Community Council some control over uses of the trademark in the community and the general balance between community interest and corporate control is struck. Some may agree and other vehemently oppose this arrangement, but in all it’s about strong control over the brand name.

Trademarks exist to ensure that the trust we have in the quality and source of our real world products is assured within a given area and within a given industry. These limitations allow for names to be reused in other industries and other areas where the products wouldn’t be confused anyway.

So in essence, if free software projects want to maintain the trust of their users and maintain the trust of their distribution, then we need to utilise trademarks or something like trademarks to do it. Whether we use product trademarks or organisational trademarks such as ‘Firefox by Debian’ vs ‘Firefox by Mozilla’ is up for some debate.

Overall, my feelings on the matter of trademark use in Free and Open Source projects is that they are probably, currently, a slight positive in effect. You may disagree, please comment if you do or even if you don’t.

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4 thoughts on “FOSS Trademarks are Probably OK”

Trademarks on Free/Open World are good, due to the fact big companies which have their sales compromised ‘cos of Open Source could make it buggy and then say: “Look, their open source suck… mine’s good! Buy it!”

Just to say this is one of the few examples of what damage big companies can cause to good Open Source software just by doing this.

Trademarks are a tough subject due to the fact that trademarks lose their protected status if their usage is not aggressively policed by the trademark owner.

This stands in stark contrast to how patents and copyright are handled, where the owners can police selectively without them losing their protected rights associated with the work in question. I actually wish patents has to be policed like trademarks..but I digress.

I don’t think anyone has figured out how to write a trademark licensing scheme in a copyleft sense or to have distributed ownership over a trademark which allows community to use and police the mark without a central entity to stand as the owner. I’m not sure its possible given the nature of what it takes under the law to maintain a mark as protected.

@Jef:
> “Trademarks are a tough subject due to the fact that trademarks lose their protected status if their usage is not aggressively policed by the trademark owner.”

You forgot the very important “in the US” words in that sentance.

This is not the case everywhere.

Which means that “distributed ownership over a trademark which allows community to use and police the mark without a central entity to stand as the owner” is possible, as long as the “owner” is not a US-based legal entity. (or any other country with the same demands for trademark protection)

yes indeed. Thank you for pointing out the limits of my experience and knowledge. Now if only US legal culture could be ignored wholesale…..

Can you point me to a jurisdiction where trademark is handled differently. Also what is the best reference you can provide for international treaty concerning the handling of cross-jurisdiction trademark issues. My current understanding is that the WIPO’s Madrid System is the international treaty of merit in the space. I don’t have a full comprehension as to how that system deals with jurisdictional differences in trademark law, maybe you can provide a layperson interpretation.